Hughes v. Parker

• Decision Date: 17 November 1897
• Docket Number: 18,232
• Citation: 48 N.E. 243,148 Ind. 692
• Parties: Hughes et al. v. Parker et al
• Court: Indiana Supreme Court

48 N.E. 243

148 Ind. 692

Hughes et al. v. Parker et al

No. 18,232

Supreme Court of Indiana

November 17, 1897

From the Hancock Circuit Court.

Affirmed.

S. A Wray, R. A. Black, R. Williamson, E. Marsh and W. W. Cook for appellants.

U. S Jackson, E. W. Felt and Spencer & Binford, for appellees.

OPINION

Howard, J.

This was an action for the foreclosure of a street assessment lien. There was a finding of facts by the court, and judgment of foreclosure in favor of appellees, contractors for the improvement. Many errors are assigned by appellants. We shall consider those which are discussed by counsel.

It is first contended that the common council of the city of Greenfield never acquired jurisdiction of the subject-matter of the improvement or of the persons of the property owners assessed therefor, for the reason that no resolution of necessity was ever passed, or notice thereof given, as required by section 2 of the Barrett law (Acts 1889, p. 237), section 4289, Burns' R. S. 1894. It must be admitted that the proceedings of the council in this matter were irregular. The resolution of necessity should have been adopted, and notice thereof given as provided in the statute. But it has been repeatedly held that such resolution and notice are not essential to give jurisdiction to the council, provided only that notice and a hearing are given to the property owners before the making of the final assessments. This notice and hearing were had in the case at bar.

In the carefully considered case of Barber Asphalt Paving Co. v. Edgerton, 125 Ind. 455, 25 N.E. 436, it was said: "That where the whole subject of the matter of local improvements, and the assessments to be made in aid thereof, are conferred upon municipal corporations having charge of, and exclusive original jurisdiction over such improvements, as in this State, the proceedings of such corporations will not be held void where there has been an attempt to comply with a statutory requirement, though such attempt does not amount to a strict compliance with the statute, if the corporation, in addition to its jurisdiction over the subject-matter, acquires jurisdiction over the persons to be affected." And again: "As to whether a particular improvement is, or is not necessary, must, of necessity, be left to the discretion of the common council of the city where the improvement is to be made. This question, we think, under the statutes in force in this State, may be determined by such council without notice to the property owner who is to be affected by such improvement." As to payment of assessments made for such improvements, however, it is said in the same connection, "the property owner is entitled to notice and a hearing;" and this notice and hearing, it is held, will satisfy the constitutional requirement. The decisions from other states, cited by counsel, are not controlling.

It is next contended that...